[Federal Register: March 26, 2010 (Volume 75, Number 58)]
[Rules and Regulations]
[Page 14496-14498]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26mr10-6]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2010-0021; 92220-1113-0000; C6]
RIN 1018-AW97
Endangered and Threatened Wildlife and Plants; Reinstatement of
Protections for the Grizzly Bear in the Greater Yellowstone Ecosystem
in Compliance With Court Order
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service) are issuing
this final rule to comply with a court order that has the effect of
reinstating the regulatory protections under the Endangered Species Act
of 1973 (ESA), as amended, for the grizzly bear (Ursus arctos
horribilis) in the Greater Yellowstone Area (GYA) and surrounding area.
This rule corrects the grizzly bear listing to reinstate the listing of
grizzly bears in the GYA. This final rule also takes administrative
action to correct two associated special rules.
DATES: This action is effective March 26, 2010. However, the court
order had legal effect immediately upon being filed on September 21,
2009.
FOR FURTHER INFORMATION CONTACT: Dr. Christopher Servheen, Grizzly Bear
Recovery Coordinator, U.S. Fish and Wildlife Service, at our Missoula
office (see ADDRESSES above) or telephone (406) 243-4903. Individuals
who are hearing-impaired or speech-impaired may call the Federal Relay
Service at (800) 877-8337 for TTY assistance.
SUPPLEMENTARY INFORMATION:
Background
On March 29, 2007, we announced the establishment of a distinct
population segment (DPS) of the grizzly bear (Ursus arctos horribilis)
for the
[[Page 14497]]
GYA and surrounding area and removed this DPS from the List of
Threatened and Endangered Wildlife (72 FR 14866). In that rule, we
determined that the Yellowstone grizzly bear population was no longer
an endangered or threatened population pursuant to the ESA (16 U.S.C.
1531 et seq.), based on the best scientific and commercial data
available. Robust population growth, coupled with State and Federal
cooperation to manage mortality and habitat, widespread public support
for grizzly bear recovery, and the development of regulatory
mechanisms, brought the Yellowstone grizzly bear population to the
point where making a change to its status was appropriate.
Subsequently, three lawsuits challenging our decision were filed in
Federal courts in Boise, Idaho, and in Missoula, Montana. Legal
briefings in these cases were completed in 2008.
In the Montana case, the plaintiff presented four claims including:
(1) The regulatory mechanisms to protect the grizzly once it is
delisted are inadequate; (2) the Service did not adequately consider
the impacts of global warming and other factors on whitebark pine nuts,
a grizzly food source; (3) the population is unacceptably small and
dependent on translocation of outside animals for genetic diversity;
and (4) the Service did not properly consider whether the grizzlies
were recovered across a significant portion of their range.
On September 21, 2009, the Montana District Court issued an order
in which plaintiffs prevailed on the first and second counts, while the
United States prevailed on the third and fourth counts. The court's
order vacated the delisting and remanded it to the Service. Thus, this
final rule is required to correct the Yellowstone grizzly bear
population's listing status.
The United States is considering whether to appeal this decision.
Regardless, this final rule is necessary because this process, should
we move forward with an appeal, would likely take several years to
complete.
The grizzly bear is a member of the brown bear species (U. arctos)
that occurs in North America, Europe, and Asia; the subspecies U. a.
horribilis is limited to North America (Rausch 1963, p. 43; Servheen
1999, pp. 50-53). The original 1975 grizzly bear listing (40 FR 31734-
31736, July 28, 1975) established the listed entity as U. a.
horribilis. However, the entry for grizzly bear in the List of
Endangered and Threatened Wildlife at 50 CFR 17.11(h) was later
modified inadvertently to U. arctos with a historic holarctic range. We
corrected the listed entity back to its original form in the March 29,
2007, final rule (72 FR 14866), which again set forth the listed entity
as U. arctos horribilis with a historic range of North America. With
this final rule, we make this same correction to the special
regulations found at 50 CFR 17.40(b) and 17.84(l).
Administrative Procedure
This rulemaking is necessary to comply with the September 21, 2009,
court order. Therefore, under these circumstances, the Director has
determined, pursuant to 5 U.S.C. 553(b), that prior notice and
opportunity for public comment are impractical and unnecessary. The
Director has further determined, pursuant to 5 U.S.C. 553(d), that the
agency has good cause to make this rule effective upon publication.
Effects of the Rule
As of the filing of the respective court order, any and all grizzly
bears in the GYA are listed as a threatened species under the ESA.
Because the Court vacated the entire delisting rule and remanded it to
the Service, there is no longer a GYA grizzly bear DPS. Thus, all
grizzly bears in the lower 48 States are again listed as threatened (50
CFR 17.11(h)). An existing 4(d) rule again applies to this population
(50 CFR 17.40(b)).
This rule will not affect the grizzly bear's Appendix II status
under the Convention on International Trade of Endangered Species of
Wild Fauna and Flora (CITES).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, in order to comply with the court orders discussed above,
we amend part 17, subchapter B of chapter I, title 50 of the Code of
Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.11 by revising the entry in the table at paragraph
(h) for ``Bear, grizzly'' as follows:
Sec. 17.11 [Amended]
* * * * *
(h) * * *
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Species Vertebrate
---------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
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Mammals
* * * * * * *
Bear, grizzly.................. Ursus arctos North America..... U.S.A., T 1, 2D, 9, 759 NA 17.40(b)
horribilis. conterminous
(lower 48)
States, except
where listed as
an experimental
population.
Do............................. do................ do................ U.S.A. (portions XN 706 NA 17.84(l)
of ID and MT, see
17.84(l)).
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* * * * *
Sec. 17.40 [Amended]
0
3. Amend Sec. 17.40 by adding the word ``horribilis'' after the word
``arctos'' in paragraph (b) heading and in the definition of ``Grizzly
bear'' in paragraph (b)(2).
[[Page 14498]]
Sec. 17.84 [Amended]
0
4. Amend Sec. 17.84 by adding the word ``horribilis'' after the word
``arctos'' in paragraph (l) heading.
Dated: March 9, 2010.
Daniel M. Ashe,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-6802 Filed 3-25-10; 8:45 am]
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